The U.S. Supreme Court continued its march toward being the most anti-employee rights court in modern U.S. history by issuing two decisions this week that make it more difficult for workers to gain the protection of federal discrimination laws.

In both decisions, the Court was divided along the same ideological lines. Voting in the majority were  Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Anthony M. Kennedy  and Alito.  Dissenting were Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

Supervisor?

In the first case, the Court threw out a lawsuit filed by a Maetta Vance, a black catering worker at Ball State University in Indiana. who said a white colleague whom she regarded as a supervisor slapped and intimidated her. Vance also said she was generally subjected to racially offensive  epithets in the workplace.

 The Court said the alleged harasser didn’t meet the legal definition of supervisor, even though the woman’s job description said she was a supervisor, because she couldn’t fire Vance.  

Justice Samuel Alito, writing for the majority in Vance v. Ball State University, said workers qualify as supervisors only if they can take  “tangible employment actions” against the alleged victim (i.e., hire,  suspend, transfer, demote, fire, discipline). 

The issue is important because employers are vicariously liable under Title VII of the Civil Rights Act of 1964  for discrimination by supervisors (but not co-workers) that culminates in a tangible employment action.

The dissent questioned why the majority chose to articulate its restrictive  definition of a supervisor:

“Not even Ball State, the defendant-employer in this case, has advanced the restrictive definition the Court adopts …  Yet the Court, insistent on constructing artificial categories where context should be key, proceeds on an immoderate and unrestrained course to corral Title VII.”

 The  opinion completely rejects an approach adopted more than a decade ago by the U.S. Equal Employment Opportunity Commission and several appellate courts that a supervisor is an employee who has the authority to recommend tangible employment decisions or is authorized to direct the employee’s daily work activities.

The majority also rejects the common dictionary definition of the term:

su·per·vise:  to oversee (a process, work, workers, etc.) during execution or performance; superintend; have the oversight and direction of.  (Dictionary.com)

Under the decision, victims of illegal harassment by non-supervisors can still sue an employer for negligence if they can show the employer failed to monitor the workplace, respond to complaints or effectively discouraged complaints from being filed. The majority also said an employer can be held to have “delegated” the power to take tangible employment actions to employees upon whose recommendation it relies. The majority upheld the lower court finding  that Ball State was not negligent because it took “reasonable steps” to halt the discrimination.

Retaliation

In the second 5-4 ruling, the Court made it much more difficult for workers  to win claim o f retaliation against employers in discrimination lawsuits.

The plaintiff  in University of Texas Southwestern Medical Center v. Nassar,  Dr. Naiel Nassar, a physician, said he was denied a faculty position with a University of Texas medical center because he complained he was  the victim of discrimination on the basis of his Middle Eastern background.

 Justice Anthony M. Kennedy, writing for the majority, said a worker must show that retaliation was the “but for” reason that  the employer took action, not merely one of several motives.  In other words, the  plaintiff must show the retaliation would not have occurred “but for”  the defendant’s discriminatory conduct. 

Justice Kennedy cites the Court’s somewhat notorious ruling in  Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176.  In that case, the Court  distinguished  the Age Dis­crimination in Employment Act of 1967 from other discrimination claims by requiring plaintiffs to prove that age discrimination was the “but for” cause of any adverse employment action.  It is a rare case that an employer cannot point to at least one other factor to justify an adverse employment action. The Gross decision has made it exceedingly difficult for plaintiffs to win age discrimination claims.

In her dissent, Justice Ginsburg wrote:

“The ball is once again in Congress’s court to correct the error into which the court has fallen and to restore the robust protections against workplace harassment the court weakens today.”

The American Council on Education and five other higher-education groups urged the justices, in a friend-of-the-court brief, to base their test of whether someone is a supervisor on the amount of authority possessed by the worker rather than workplace titles or worker perceptions.

A recent study published in the Minnesota Law Review determined that the Court is  the most pro-business Court since World War II.

* See earlier coverage of Vance case.